St. Louis to become a DUI “No Refusal Zone”

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ST. LOUIS, MO (KTVI) - If an officer suspects you are driving in St. Louis City under the influence of alcohol, you can refuse a breath test. But, you might face a blood test whether you consent or not.

Missouri law says you can refuse to give a breath test, if police pull you over and suspect that you are driving drunk. But, the law does not protect you from certain consequences. Neither does a recent ruling by the nation’s highest court.

In Cape Girardeau County, an officer arrested Tyler McNeely in October 2010 for suspicion of DUI. McNeely refused to take a breath test. An officer took McNeely to the hospital and had his blood drawn, without a warrant.

Eight of the nine Supreme Court justices said that action violated the suspect’s fourth amendment protection from unnecessary search and seizure. Justice Sonya Sotomayor stated that police must first seek a search warrant for that blood. It looks like city officials plan to do that, each and every time a suspect refuses a breath test.

We also heard from Wentzville, Mo. Judge Mike Carter. He was found not guilty of DWI. In a written statement, he applauded the city’s efforts to catch drunk drivers. But, he called seeking a warrant for a blood test for each and every refusal “disturbing”.

25 comments

ByeByeToTheRite

So, you can’t “refuse” to have your Constitutional rights against unreasonable search and seizure violated in the city? Again, just like with red light cameras, the city is stretching legal interpretations and doing things that MAY still be illegal, just to bring in some more bucks so they can handout some more tax breaks to the wealthy. Seems to me, and should seem that way to any intelligent, free-thinking American, that the only part of the Constitution that matters any more at all is the part about being able to arm yourself to the teeth. Apparently none of the other freedoms matter – but we all know how important guns are to certain people! Especially the wealthy who don’t want nobody stealing anything back from them – they already stole it fair and square! Another story just today about Illinois’ citizens being ordered to allow the 1% who want to carry guns is another example – no stories about anybody being forced to honor ANY OTHER Constitutional rights! And the downward spiral continues.

rherboth57@gmail.com

ByeBye-I agree with you as how can this be Constitutional, and I hope lawyers can find a glitch in this to make it Unconstitutional. You are commenting on legal gun ownership, which IS our Constitutional right, whether a person wants to exercise that right or not. You still have that right. I was under the impression that you were for standing up for ALL of our Constitutional Rights, not pick and choose.

ByeByeToTheRite

I’m just wondering aloud why gun rights are the ONLY rights that matter in today’s America – probably has something to do with the wealthy and powerful NRA lobby, more than a concern for the Constitution. Having said that, this liberal is 100% for the right to bear arms, meaning owning and possessing them – I’m not sold on conceal carry, though, and nowhere in the Constitution does it say that specifically. I own two fairly powerful guns personally, and believe in my right to do so. Packing heat while on the street, though? Not a good idea, and NOT specifically protected by the Constitution. Unreasonable search and seizure, which I think being stopped for no reason at a roadblock clear is, IS specifically mentioned, however. Why aren’t we respecting it?

Deb

Deb, what a wonderful idea. That is so simple yet it escapes most people. The idea of a designated driver is just so cumbersome to many as well. Yet if they don’t have one they still drink themselves in to a stupor and wonder why they are waking up in jail after getting behind the wheel.

Simple solution is don’t drink a drive. And if you are sober, obey posted limits and you wont get pulled over in the first place. Driving is a privilege not a right. Treat it as such.

Joe

why is it,…
SO it’s like this, I’ve had 3 friends killed in the last year in traffic accidents with no alcohol involved, so, these were just regular accidents because as we know as humans and people accidents happen, but had anyone of those people had 2 or 3 beers or glasses of wine in them, not drunk or slurring speech or swerving or anything, but the same “accidents happen” kind of accident it would have gone down as “alcohol related” or a drunk driver death,…???
couldn’t they just have an ‘accident when they were driving home even if they had had a few beers,…?
there are 3 degrees of murder you can be charged, why don’t they have degree’s of DWI’s as well,….?
I’ve always wondered that, now they have this “don’t drive buzzed” campaign on,… (jeez,…!)
but as Joe mentioned,…. what about drunk cops,…?
I’ve been in bars where cops were having a party, at one they even got rowdy and obnoxious,… they all drive home,…
just a curiosity,…..

ByeByeToTheRite

You are just SO correct. The simple truth is, MOST fatal accidents are NOT caused by alcohol – and never have been. Even when the limit was .14 (just 25 years ago). MOST fatal accidents are caused by inattention, yet where is the fanaticism to cut down on that? What’s left is just a simple religious, moral issue, brought upon us by the moral hypocrites in MADD who simply want to stop drinking altogether and start prohibition again – even the founder of MADD left when it became a fanatic anti-drinking organization. Big trucks kill people all the time, too, yet where is the “crackdown” and violation of Constitutional rights to stop THAT slaughter? This is just about brining in more money in fines, and appeasing the religious right, and has nothing to do with safety. Thanks, Scuba, for setting the record straight for the misled sheep here.

Angie

Not sure I agree with this, although I ride with a DD if I plan to drink this is definitely a search and seizure. This has no similarity with red light cameras which are peripheral and not IN your vehicle, stop and you don’t have a problem.

anon

Babs

I noticed they didn’t mention that if you “refuse to blow” your driver’s license is automatically revoked for a year, if you want to apply for a Limited Driving Privilege permit you have to get an SR-22 insurance filing, and get an ignition breathalyzer lock and then to get your license back after a year you have to attend SATOP. All this just because you are exercising your right of refusal. Not everyone that is pulled over because a police officer “thinks” you might be drinking has been drinking. I’m just saying be aware of your rights and the consequences…they’ve got you over a barrel. And don’t tell me if you haven’t been drinking you shouldn’t worry about blowing into the Breathalyzer….many instances have been documented where innocent people were charged with DWI because the Breathalyzer was not cleared from the prior test or it has not been property calibrated.

Babs, the new electronic breathalyzers purge the analytical system before, and after each breath test. The old Smith & Wesson 900,and 900A instruments used to be called dial a drunk as the analytical system could be manipulated. As far as calibration goes, a type 2 operator has to maintain the instrument monthly, and a copy of the maintenance report must accompany each DWI report to make sure it was operating properly.

Babs, I forgot to address you comment about about losing your license for refusing to take the breath test. The implied consent law, is read to the suspect along with his / her Miranda rights during the interview process. At that time he / she is told that their license shall be revoked for one year if they refuse to submit a breath sample.

Typically, getting a warrant is a time-consuming process because the police officer has to first contact a prosecuting attorney, have the prosecuting attorney prepare an affidavit and submit everything to a judge for a signed warrant. This process used to require a police officer to drive to the prosecutor’s office (or house if after business hours.) and then go to the Judge’s chambers (or house if after business hours).

If St. Louis city intends to pull warrants on every refusal, they will have to figure out how to streamline the process otherwise police officers will become inundated with driving back and fourth between the police station, the prosecutor and the judge.

I wanted to respond to some of the comments I have seen posted so far:

Forcing someone to provide blood for chemical testing is a search. The reason it is not, initially, a 4th amendment violation is because it does require a warrant. A warrant may only be issued upon probable cause to believe that, in this case, someone is driving while intoxicated.

The issue becomes whether the police officer actually had probable cause to believe that the person subjected to a search was intoxicated.

While police officers have many tools to develop probable cause, the most common way they develop probable cause is the admission of the driver. Most drivers, when asked whether they have had anything to drink, answer yes and then lie about the number of drinks that they had. What they need to realize is that even admitting to one drink starts giving the officer probable cause for a subsequent arrest. While an admission, by itself, is not enough for probable cause, any other factor in addition to the admission might be. For example, admission of drinking and inability to maintain a single lane while driving could be enough probable cause for an arrest.

Driver stopped on suspicion of DWI should realize that they have a right not to incriminate themselves, ask for a lawyer and remain quiet.

Citicop

As a DWI Enforcement Instructor in the greater metro area, I have to tell you I have never seen a single case where an admission of drinking made or broke a case for DWI.

Yes, an admission of drinking can be used to help establish Probable Cause to arrest. But even absent an admission, there are plenty of other indicators (odor of alcohol, bloodshot watery eyes, slurred speech, trouble with fine motor skills and balance, etc.) that more than make up for it.

I’m not advocating for people to make incriminating statements unnecessarily, but I have never heard of one single case where the difference between arrest and freedom came down to, “well, he didn’t SAY he was drinking…”

Joe

Here’s what happens with a policy like this. Because it’s not a law. It’s a municipal policy based on an interpretation of a Supreme Court ruling:

Someone stone sober goes driving around within city limits at 3AM every weekend until they get stopped at a sobriety checkpoint. They refuse the breathalyzer because they are, in fact, sober. Law enforcement/judge issues a warrant to draw blood, which reveals a BAC of 0.0.

Sober driver then makes a federal case out of it… literally. Because it is now a 4th amendment issue and a privacy issue due to the DNA involved.

ACLU swoops in and goes after law enforcement officer, judge, states attorney, and municipality with a vengeance… Costing taxpayers of said municipality 10’s of millions regardless of the verdict or any change in policy.

Bad policy, through and through. Eroding our most basic rights as citizens in the name of safety does not make us more safe. Quite the opposite, actually. Ben Franklin said it best. I’ll paraphrase: “Those willing to sacrifice liberty for security deserve neither liberty or security.”

Driving is a privilege, not a right. Your consent to two types of chemical tests is implied in the law. If you refuse, your license will be revoked. If you submit to a test and your BAC is over the legal limit, your license will be suspended or revoked. And if an officer has probable cause to arrest you for DWI, it is certainly legal for him to request a warrant to draw your blood. There is no 4th amendment issue here. And honestly, the guy in your hypothetical scenario is dumb as hell. If he was really sober, he would have no reason to fear a breath test.

Citicop

I seriously doubt the ACLU would touch that case.

People who are stone cold sober aren’t going to be targeted in this case. You don’t get asked to submit to a chemical breath test unless and until the officers have developed the probable cause of DWI needed to arrest someone.

Once they have that probable cause and you refuse the test, they then present their evidence to a prosecutor who then signs off and takes it to a judge, who signs off on it.

So a sober person who is not displaying numerous indicators of intoxication is not going to be asked to take the test in the first place, even at a sobriety checkpoint. And if a person is displaying indicators of impairment, and the blood test comes back with no alcohol or drugs in their system, then there was still no wrongdoing on the part of the police. The burden of proof necessary for a search warrant or arrest is “probable cause…” which is much lower than the “beyond a reasonable doubt” needed to convict.

And DNA does not enter at all into the equation. It is not kept or tested in routine DWI chemical tests.